Your reposting of the Law of Fisking coincided with an actual threat to sue for copyright infringement in a Fisking situation involving one of your fellow California profs from CSU Long Beach. Mike Adams — a criminal justice prof from North Carolina and a conservative columnist — has been going back and forth with a guy at CSULB named Clifton Snider.

I'm pretty sure that Adams' actions in quoting Snider's post are solidly fair use: He's quoting material in order to criticize it, and he's doing it in a way that has no effect on the market value of Snider's Web site (which is nil). And though Adams is using a good deal of Snider's text, such use is necessary in order to make Adams' critical point.

Adams' actions in quoting Snider's e-mail are a little closer to the line; the unpublished nature of Snider's e-mail (unpublished, that is, by Snider) cuts against fair use. Nonetheless, on balance I think the critical (as well as news reporting) nature of Adams' use, and the shortness of Snider's unpublished e-mail, cut in favor of fair use as well.

In any event, from what I see on Adams' site, Snider has no case, and Adams is entirely within his rights in ignoring Snider's demands.

Apropos the post below about Snider vs. Adams, check out Prof. Snider's guidelines for student papers in his Cal State Long Beach class (Adams also points out other problems with Snider's guidelines, but I want to stick to this):

Argument

I. Purpose: to persuade or at least to create tolerance for your point of view on a controversial issue; also to acknowledge the opposing side of the issue. . . .

Subjects to Avoid . . .

4. Topics on which there is, in my opinion, no other side apart from chauvinistic, religious, or bigoted opinions and pseudo-science (for example, female circumcision, prayer in public schools, same-sex marriage, the so-called faith-based initiative, abortion, hate crime laws, the existence of the Holocaust, and so-called creationism). For example, see Terrence McNally's "Just a Love Story," Los Angeles Times, 13 February 2004: B15. McNally correctly concludes that those who oppose same-sex marriage do so for one reason: homophobia. "Homophobia," as Robert Goss points out, "is the socialized state of fear, threat, aversion, prejudice, and irrational hatred of the feelings of same-sex attraction" (Jesus Acted Up: A Gay and Lesbian Manifesto, New York: HarperSanFrancisco, 1993: 1). In other words, homophobia is to gays and lesbians what racism is to people of color. Neither homophobia nor racism can be tolerated in civilized, rational debate; therefore, I will not accept either as arguments, however disguised, in your papers.

So in other words, the following arguments are inherently "chauvinistic, religious, or bigoted" -- not just mistaken or incomplete (necessarily, since they're short summaries), but chauvinistic, religious, or bigoted:

"Hate crimes laws are counterproductive, because they reinforce identity politics, and make racial groups more aggrieved at each other rather than less. They are also morally misguided, because assault or murder should be treated the same whether it's motivated by racism or sadism. Finally, they risk unduly interfering with people's free speech because they will often require prosecutors to comb through defendants' political statements and associations."

"Faith-based social programs should be entitled to be treated on an equal footing with non-faith-based social programs. If government money is spent on drug and alcohol rehabilitation, and a religiously themed program seems likely to do a good job at providing such rehabilitation, then it should get rehab funds just like a secular program should."

"Abortion should be opposed, because I believe -- together with liberal atheist Nat Hentoff that there is something to the argument that '[b]ecause abortion had become legal and easily available, . . . infanticide would eventually become openly permissible, to be followed by euthanasia for infirm, expensive senior citizens.'"

"In the last several decades, we've been experimenting a great deal with longstanding family institutions. We've liberalized divorce laws, destigmatized illegitimacy, destigmatized premarital sex, and more. Some of these changes may have been good, others may not have been but we ought to be cautious about implementing more such changes."

"Religion is a useful and important means of social control. Prayer in public schools helps teach students to be more obedient and moral, whether or not God exists."

"The Establishment Clause has been badly misread by the courts; it should never have been interpreted to apply to state and local governments. Local majorities should thus be entirely free to implement prayer in public schools, should they wish to, so long as students aren't legally punished for not participating."

I could add more examples, but are they really needed? I stress again that the point isn't that all these arguments are persuasive -- I don't agree with all of them myself. Rather, the point is that a professor who holds the "opinion [that there is] no other side apart from chauvinistic, religious, or bigoted opinions and pseudo-science [on these topics]" either

is strikingly intolerant of reasonable, thoughtful, civilized argument that expresses viewpoints with which he disagrees, or

has not given much serious thought to the subjects.

Neither is a quality we should much appreciate in our university professors.

Dr. Clifton Snider
English 100
California State University, Long Beach

Notice to my students: someone has published illegally in what purports to be an "article" material from my web site, that is, portions of my assignments. The article, among many misrepresentations, implies I require that you write about certain topics. As you know, you have always had a wide choice of topics to write about in your papers. The same is true for the Argument Paper. I believe in and practice academic freedom.*

. . .

*According to university policy, passed by the Academic Senate on 28 February 2000, the "primary responsibility [of professors] to their subject is to seek and to state the truth as they see it." As far as academic freedom goes, "the special nature of universities protects professors from being question[ed] about their lectures" (CSULB web site).

Let's look at Prof. Snider's use of evidence here. I searched for the quote he gave, and I did find it on a "CSULB web site": It's "The special nature of universities protects professors from being questions about their lectures," and it's at a page labeled "Lecture Notes: Academic Freedom." My guess, from the URL of the page (http://www.csulb.edu/~crsmith/41acfre.html), is that it's maintained by Prof. Craig Smith. I'd imagine that a typical reader seeing the notation "CSULB web site" would assume that Prof. Snider is referring to an official CSULB web site (did you assume that when reading it?), not the opinions of another professor, no matter how respected he might be. It would seem to me more accurate to cite it as "Prof. Smith's web page," not "CSULB web site." (My apologies if Prof. Snider is pointing to some other site, but the page I describe below is the only one I found, and Prof. Snider certainly didn't link to any other page.)

But much more importantly, consider the context in which Prof. Smith makes this statement:

II. The special nature of universities protects professors from being questions about their lectures.

Sweezy v. New Hampshire (1957) the Court was faced with the question of whether the Attorney General of New Hampshire could prosecute an individual for refusal to answer questions about a lecture delivered at the state university concerning the Progressive Party of the United States. In holding for the teacher, the Court stressed the "essentiality of freedom in the community of American universities," and warned against "imposing any strait jacket upon the intellectual leaders in our colleges and universities."

Sweezy did hold that university professors have some immunity from being coercively questioned by government bodies. Sweezy was, after all, prosecuted for refusing to answer questions that he was ordered to answer by a state legislative committee.

Rendering this as "the special nature of universities protects professors from being question[ed] about their lectures," in the process of protesting criticism by nongovernmental critics, strikes me as quoting out of context. Sweezy did not say anything about professors' being questioned by TownHall columnists, or by their students; as Prof. Smith's Web page points out, it spoke of a rather different sort of "question[ing]" — coercive questioning by the government, with the threat of legal punishment for silence. To press the "protects professors from being question[ed]" language into the very different context of questioning by columnists, without any acknowledgment that the quote originated in a very different context, strikes me as improper use of evidence. I would expect that Prof. Snider would mark down any paper that quoted material out of context that way.

Finally, even setting aside the use of evidence, does Prof. Snider really believe that academic freedom protects academics from being questioned — which is to say, criticized — for what they teach? Wouldn't Prof. Snider's critic (as it happens, himself an academic) himself have a First Amendment right to criticize Prof. Snider? Free speech is speech free of government restraint, not free of others' exercise of their own freedom to criticize. I would have thought that Prof. Snider, with his asserted respect for freedom, would appreciate this.